The Truth About Guantnamo
Proposals to treat detainees as criminal defendants make a mockery of international humanitarian law.

The Wall Street Journal, Tuesday, June 26, 2007

Was it wishful thinking? On Thursday the Associated Press reported that, according to sources it did not name, "the Bush administration is nearing a decision to close the Guantanamo Bay detainee facility and move the terror suspects there to military prisons elsewhere." The White House quickly denied the rumor, and, for good measure, on Friday the Pentagon announced that Guantanamo had admitted its first new detainee in months: Haroon al-Afghani, a commander from the al Qaeda-affiliated terror group Hezb-i-Islami.

The AP's impatience to write the final chapter of the Guantanamo story is of a piece with the way news organizations generally have told the story. Although the Supreme Court has granted some rights to detainees, it has been remarkably restrained in doing so. But journalists have falsely portrayed Guantanamo as an affront to the Constitution and international law.

Perhaps the most striking example was the New York Times's coverage of Hamdan v. Rumsfeld, which the court decided a year ago this week. "The decision was such a sweeping and categorical defeat for the administration that it left human rights lawyers who have pressed this and other cases on behalf of Guantanamo detainees almost speechless with surprise and delight, using words like 'fantastic,' 'amazing' and 'remarkable,' " correspondent Linda Greenhouse exulted. She opined that there was "no doubt" the ruling represented "a historic event, a defining moment," and likened it to U.S. v. Nixon, the 1974 case in which the court unanimously ordered the president to turn over the Watergate tapes.

Nixon resigned 15 days after that decision. A year after Hamdan, it is safe to say that its impact has been rather less dramatic. While the court, by a vote of 5-3, did hand Salim Ahmed Hamdan, Osama bin Laden's personal driver and bodyguard, a victory on key points, Ms. Greenhouse's purple prose belied the narrow grounds on which it did so. Less than four months after Hamdan, Congress passed the Military Commissions Act, which effectively undid the ruling. Congress had this power because the Supreme Court has not extended a single constitutional right to alien enemy combatants.

Hamdan dealt with two legal questions: whether detainees have the right to challenge their captivity by petitioning a court for a writ of habeas corpus, and whether the military commissions established to try detainees for war crimes passed muster under U.S. and international law.

The court had ruled in Rasul v. Bush (2004) that detainees had the right to file habeas petitions. But it rested that conclusion on statutory, not constitutional, grounds--that is, it found that Congress had conferred this right on the detainees. Congress therefore had the authority to take it away, and it did so by passing the Detainee Treatment Act of 2005, which stripped federal courts of jurisdiction to hear Guantanamo detainees' habeas petitions.

But in Hamdan, the high court held that the 2005 act did not apply retroactively, so that habeas proceedings already under way could continue. The Military Commissions Act removed this ambiguity and ordered a stop to all habeas petitions. An appellate court upheld this provision in February 2007, and in April the U.S. Supreme Court declined to hear a challenge to that ruling. The Justice Department has petitioned for the dismissal of still-pending habeas claims.

In overturning the administratively created war-crimes commissions, the Supreme Court found that detainees are entitled to some protections under the Geneva Conventions. It did not afford them the privileges enjoyed by legitimate prisoners of war--those who wear uniforms, carry weapons openly and otherwise comply with the rules of war. Instead, it ruled that they have more-limited rights under Geneva's Common Article 3, which applies to conflicts "not of an international character." This originally meant civil wars, but the court imaginatively reasoned that since al Qaeda is not a nation, its war against America is not "international."

Yet the justices granted the detainees only one specific right under Common Article 3: the right to have any criminal charges heard by a "regularly constituted court"--one created by an act of Congress. The high court has not adjudicated the legality of the legislatively created commissions, but it seems unlikely to rule against them. Four justices in the Hamdan majority joined Stephen Breyer's concurrence, which expressly invited Congress to authorize military commissions.

To be sure, legal obstacles remain. Earlier this month two military judges dismissed charges against Hamdan and another detainee, on the pedantic ground that administrative tribunals had designated them enemy combatants, not unlawful enemy combatants--notwithstanding that they clearly meet the Military Commissions Act's definition of unlawful combatants.

Some politicians have also undertaken efforts on behalf of enemy fighters. Senate Democrats, joined by Republican Arlen Specter, have introduced legislation that would restore habeas rights to Guantanamo detainees, although this is unlikely to become law as long as George W. Bush is president.

Colin Powell would go even further. "I would close Guantanamo, not tomorrow, but this afternoon," the former secretary of state told NBC's Tim Russert earlier this month. "I'd get rid of the military commission system and use established procedures in federal law or in the manual for courts-martial."

Mr. Powell claimed that "I would not let any of [the detainees] go," but his proposal would inevitably have that effect. Once inside the criminal justice system, detainees would become defendants with full constitutional rights, including the right to be charged or released, the right to exclude tainted evidence, and the right to be freed unless found guilty of a specific crime beyond a reasonable doubt.

Legitimate prisoners of war enjoy no such rights. The primary purpose of holding enemy combatants during wartime is not punitive but preventive--to keep them off the battlefield. No one disputes that a country at war can hold POWs without charge for the duration of hostilities. Justice John Paul Stevens, writing for the majority in Hamdan, reaffirmed the government's authority to do the same with the unlawful combatants at Guantanamo.

By granting constitutional protections to detainees, Mr. Powell's proposal would endanger the lives of American civilians. It would also afford preferential treatment to enemy fighters who defy the rules of war. This would make a mockery of international humanitarian law.

In the long run, it could also imperil the civil liberties of Americans. Leniency toward detainees is on the table today only because al Qaeda has so far failed to strike America since 9/11. If it succeeded again, public pressure for harsher measures would be hard for politicians to resist. And if enemy combatants had been transferred to the criminal justice system, those measures would be much more likely to diminish the rights of citizens who have nothing to do with terrorism.

By keeping terrorists out of America, Guantanamo protects Americans' physical safety. By keeping them out of our justice system, it also protects our freedom.

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